Revoking speech not appropriate in civil dispute

January 31, 2007

By Freedom Newspapers

As H.L. Mencken once wrote, “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

That might be one way of looking at the situation the California Supreme Court finds itself confronting in dealing with a First Amendment case emanating from an odd dispute between Anne Lemen and the Village Inn, a bar located near her Balboa Island home.

Lemen has had a running battle with the inn, and has taken steps that strike a good many people as outrageous.

According to news reports and court records, she has videotaped the bar’s customers, has allegedly told people the bar is involved in sex videos and child pornography, and that the bar is involved in illegal drugs and sells poisoned food.

She has reportedly blasted her car horn in front of the inn for 30 minutes and has called patrons various nasty names. Lemen is troubled by the establishment’s noise and behavior of some of its patrons, and in the past led a signature drive to keep the inn from expanding and getting an entertainment permit.

How do you stop such harassing behavior without undermining Lemen’s rights? Lemen is limited from pulling such stunts on the bar’s private property, but what about on the public property in front of the inn?

The issue is the question of prior restraint. When can the government impose restraints on speech and behavior before the fact?

Was the trial court acting within the bounds of the First Amendment when it ordered Lemen to stop making false statements about the bar and videotaping its customers, and prohibiting her from initiating contact with Village Inn employees? Lemen appealed, and the appellate court overturned the trial court, noting that “(d)eparting patrons often are inebriated and boisterous. Noise, disturbances and public urination are not uncommon.”

More significantly, the appellate court ruled the injunction prohibiting future defamatory statements and the ban on initiating contact with Village Inn employees constitute “impermissible prior restraints on speech and are overly broad.”

This issue is not whether Lemen is right to behave as she does. The issue is whether the government should solve a civil dispute by revoking someone’s First Amendment right to freedom of speech.

We have no problem with using, say, nuisance laws to stop someone from harassing someone else. But it is entirely inappropriate to penalize Lemen by muzzling her future speech.

Speaking untruths that damage others has consequences, but they don’t include losing the freedom of speech. As Lemen’s attorneys rightly point out, that would put “courts in the role of being perpetual censors determining whether speech can occur.”